Criminal Court of the City of New York, New York County, April 22, 2021

Clayman & Rosenberg LLP (Thomas C. Rotko and Isabelle A. Kirshner of counsel) for defendant.

Cyrus R. Vance, Jr., District Attorney (Sydney I. Taylor of counsel), for plaintiff.

Defendant Andrew Lavrik, charged with one count of endangering the welfare of a child (Penal Law § 260.10), and one count of sexual abuse in the third degree (Penal Law § 130.55), moves, by notice of motion dated March 5, 2021, to dismiss the accusatory instrument pursuant to CPL 30.30 (1) (b) and 170.30 (e). The court finds that 93 chargeable days have elapsed; therefore, defendant's motion is granted.

Background and Procedural History

On January 4, 2021, this court, by written decision, denied Mr. Lavrik's previous CPL 30.30 motion, finding that a total of 86 chargeable days had elapsed in this case. On March 5, 2021, Mr. Lavrik filed a second motion to dismiss pursuant to CPL 30.30 based upon this court's oral ruling at a court appearance on February 19, 2021, invalidating three previous certificates of readiness (hereinafter, COR) filed by the People, all during the month of January 2020. In its earlier decision, this court credited those CORs when deciding Mr. Lavrik's first motion to dismiss. However, upon further review, and considering recent, persuasive authority in courts of concurrent jurisdiction, this court now finds that the prior CORs were not in fact valid as they were lacking the proper certifications mandated by CPL 30.30 (5-a). As the previous CORs did not toll the speedy trial clock, the new calculation of elapsed speedy trial time results in a total of 93 chargeable days, which exceeds the allowable 90 days for the People to answer ready for trial in this case.

Discussion

In 2019, New York amended its speedy trial statute with the addition of CPL 30.30 (5-a), which provides:

"Upon a local criminal court accusatory instrument, {**72 Misc 3d at 356}a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of sections 100.15 and 100.40 of this chapter and those [*2]counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed." (Emphasis added.)

This statute imposes on the court a simple language interpretation and this court relies on long-standing Court of Appeals precedent that "[t]he governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory 'language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of [the] words' used." (People v Finnegan, 85 NY2d 53, 58 [1995]; People v Francis, 30 NY3d 737, 740 [2018]; Matter of Walsh v New York State Comptroller, 34 NY3d 520, 524 [2019]; Colon v Martin, 35 NY3d 75, 78 [2020].)

As the People correctly note in their response, the addition of this new subdivision to CPL 30.30 was "aimed at ending the practice of 'partial readiness.' " (See People's response ¶ 24 at 10.) This court agrees that the purpose of CPL 30.30 (5-a) was "to abrogate decisional law that authorized the prosecution to answer 'ready for trial' on an accusatory instrument that stemmed from a misdemeanor complaint or felony complaint that had been converted to an information as to some but not all of the charges contained in the misdemeanor or felony complaint."^[FN1]

A CPL 30.30 (5-a) certification requires the People to attest in a COR: (1) that all counts of an accusatory instrument are facially sufficient in compliance with CPL 100.15 and 100.40; and (2) that those counts not meeting the requirements for facial sufficiency have been dismissed, before they can "answer ready" and toll the speedy trial clock.^[FN2] This requirement does not place an additional burden on the People.{**72 Misc 3d at 357}

In the case at bar, the People filed several CORs dated January 15, 2020, January 17, 2020, and January 23, 2020, which state: "Sydney Taylor, an Assistant District Attorney in the County of New York, hereby certifies that the People are ready for trial in the above-entitled action. I further certify that all counts currently charged in the accusatory instrument meet the requirements of CPL §§ 100.15 and 100.40."

These CORs do not comport with the additional certifications required by CPL 30.30 (5-a). Although the certificates attest to the facial sufficiency of the counts contained in the accusatory instrument, they do not certify the second prong of the statute, namely, that any unconverted counts have been dismissed, or that no counts have been dismissed. The People's insertion of the word "currently" in the CORs does not address what, if any, charges have been dismissed, and does not satisfy the second prong of CPL 30.30 (5-a), as intended by the amendment.

The People argue that the second prong of the statute requires a certain action to be taken. Although the court agrees with the People, it is this court's opinion that such action is not complete until the People certify if any action was taken. Inserting the word "currently" does [*3]not meet the threshold and is an attempt to end-run around their required certification.

On February 20, 2021, the People filed an additional COR, which states, in part:

"Sydney Taylor, an Assistant District Attorney in the County of New York, hereby certifies that the People are ready for trial in the above-entitled action. I further certify that all counts currently charged in the accusatory instrument meet the requirements of CPL §§ 100.15 and 100.40. There are no counts not meeting the requirements of sections 100.15 and 100.40 of this chapter and, therefore, none have been dismissed."

This certificate does contain the proper language as mandated by the statute and is therefore valid. Notably, the People submitting CORs to this court, certifying both prongs, affirms this court's simple language statutory interpretation of CPL 30.30 (5-a).

On February 20, 2021, in their COR, the People also attempt to retroactively correct their defective certificates from January 2020, when they state:

"I further certify that all counts charged in the accusatory{**72 Misc 3d at 358} instrument as of January 16, 2020, January 17, 2020, January 23, 2020 and January 24, 2020^[FN3] met the requirements of CPL §§ 100.15 and 100.40 and, as of January 16, 2020, January 17, 2020, January 23, 2020 and January 24, 2020, there were no counts that did not meet the requirements of sections 100.15 and 100.40 of this chapter. Therefore, none had been dismissed" (emphasis added).

This effort to retroactively certify the People's readiness is ineffective because the speedy trial statute contemplates present readiness, not past, and not future. (See People v Kendzia, 64 NY2d 331 [1985].)^[FN4]

The People further argue that while the intent of the legislature is clear, the language of CPL 30.30 (5-a) is not. This court disagrees. The People, in their analysis, muddy the waters and twist the language of the statute beyond logical interpretation when they argue that they should only have to certify the first clause of the statute. And yet the People conformed to this court's interpretation of CPL 30.30 (5-a) in their COR dated February 20, 2021, referenced above. Notwithstanding their flip-flop behavior, this court's plain reading of the statute is that the word "certify" clearly applies to both the first and second clauses of the statute; therefore the prosecutor is required and must continue to certify in writing that both conditions are met.

Consistent with this court's view, several other courts have begun to invalidate "statements of readiness" which do not contain the required certification language, resulting in dismissal. (See People v Aaron Ross, Crim Ct, NY County, Aug. 2020, Gaffey, J., docket No. CR-025918-19NY; People v Manny Lopez, Crim Ct, NY County, Jan. 2021, Chu, J., docket No. CR-001527-20NY; People v Ramirez-Correa, 71 Misc 3d 570 [Crim Ct, Queens County, Feb. 25, 2021]; People v Rivera, Crim Ct, NY County, Apr. 2021, Maldonado-Cruz, J., docket No. CR-004779-20NY.)

Based on this court's interpretation of the statutory mandate of CPL 30.30 (5-a), the CORs filed on January 15, 2020, January 17, 2020, and January 23, 2020, do not comply with the statute, are invalid, and therefore did not toll the speedy trial clock.{**72 Misc 3d at 359}

Accordingly, the court makes the following speedy trial calculations with respect to each adjournment:

October 22, 2019-November 13, 2019

The case was arraigned and adjourned for conversion. 22 days are charged.

November 13, 2019-January 23, 2020

No supporting deposition was filed, and the case was adjourned again for conversion. On January 16, 2020, the People filed a supporting deposition, certificate of compliance and COR;^[FN5] however because this court is ruling the COR invalid as lacking a proper CPL 30.30 (5-a) certification, it did not toll the speedy trial clock. On January 17, 2020, the People filed an additional COR. However, lacking the proper certification, this COR is deemed invalid. As such, the entire adjournment is includable. 71 days are charged.

January 23, 2020-March 23, 2020

The court deemed the complaint an information, and the case was adjourned for trial. On January 23, 2020, after a court appearance, the People filed a new COR. Lacking the required certification pursuant to CPL 30.30 (5-a), it was deemed invalid as incomplete. However, the record reflects that defense counsel requested a motion schedule, so although the court adjourned the case for trial, this adjournment is excludable. (CPL 30.30 [4] [a].) On March 9, 2020, Mr. Lavrik did file a motion in limine off-calendar, which further tolled the speedy trial clock, pursuant to CPL 30.30 (4) (a). Therefore, 0 days are charged.

March 23, 2020-October 28, 2020

The case was administratively adjourned due to the coronavirus pandemic, as only emergency matters were being calendared at this time. Additionally, Governor Cuomo issued Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8), which suspended CPL 30.30 and tolled all speedy trial calculations as of March 20, 2020, and until October 5, 2020. 0 days are charged.

October 28, 2020-December 1, 2020

The People answered ready for trial; however the case was adjourned for trial to December 1, 2020. Accordingly, 0 days are charged.{**72 Misc 3d at 360}

December 1, 2020-January 8, 2021

The People answered ready for trial. On December 1, 2020, Mr. Lavrik filed a motion to dismiss for speedy trial, and the case was adjourned for response and decision. Therefore, this adjournment is excludable. (CPL 30.30 [4] [a].) 0 days are charged.

January 8, 2021-February 19, 2021

The court issued a decision, denying Mr. Lavrik's motion to dismiss. Although the People answered not ready for trial after the court's inquiry, the record reflects that Mr. Lavrik requested a date of February 19, 2021, for trial; therefore, this adjournment is excludable. (CPL 30.30 [4] [b].) 0 days are charged.

February 19, 2021-April 23, 2021

The People answered ready for trial. Inspired by the court's oral ruling invalidating the prior CORs, Mr. Lavrik requested a new 30.30 motion schedule and the case was adjourned for the People's response off-calendar and the court's decision. This adjournment is excludable. (CPL 30.30 [4] [a].) 0 days are charged.

Conclusion

For the aforementioned reasons, the court finds that 93 chargeable days have elapsed since the commencement of the case, and therefore, the People have exceeded their allowable speedy trial time. Accordingly, Mr. Lavrik's motion to dismiss pursuant to CPL 30.30 (1) (b) and 170.30 (e) is granted.